from the build-it-and-they-will-come dept

As we've noticed in the past, if there's a place to start fixing U.S. broadband competition, it's the nearly two-dozen state protectionist broadband laws written and passed by the nation's incumbent ISPs. Said laws either hinder or outright ban towns and cities from building and/or improving their own broadband networks, even in cases where local private companies refuse to. In several instances, the laws even prohibit government collaboration with private companies in any way.

The laws are usually passed under the pretense of protecting communities from their own financial missteps, with assorted industry mouthpieces like Marsha Blackburn playing up the failures of a few select municipal broadband projects. Of course, like any business plan, these ventures can be built on solid or rotten frames, and several have been quite successful. In contrast, these protectionist laws take local choice away entirely, replacing it with mechanisms that do little more than insulate the nation's lumbering broadband mono/duopoly from competition of any kind.

Fortunately, in the last year or so, these laws have started to see some renewed public attention as projects like Google Fiber have people clamoring for faster, cheaper broadband service.

Colorado's 2005 state law hindering community broadband bills was pushed for by local incumbents CenturyLink (formerly Qwest) and Comcast, which, like AT&T, have a long and quite sleazy history of passing awful laws, trying to sue such operations out of existence, or engaging in misleading disinformation campaigns (like telling locals their taxpayer money will go toward subsidizing porn). In Colorado's case, the 2005 law fortunately included provisions allowing locals to build networks if they call for an election. Last week, Boulder and six other communities voted to move forward with the idea of building their own networks.

Comcast is busy in Washington trying to maintain a clean facade in order to get regulatory approval of its $45 billion acquisition of Time Warner Cable, so it didn't challenge the efforts, something that helps explain the campaign's success:

"How were they able to secure such a big victory? There might be some factors at work that are bigger than even Colorado. Comcast, the state's largest cable provider, did not fight the referendum, perhaps because it is focused on getting its proposed merger with Time Warner Cable approved in Washington. (Comcast declined to comment for this report.)"

Like so many technology issues (net neutrality springs to mind), this issue of community broadband has somehow been caught in the partisan politics team cheerleading wormhole, even though letting a giant corporation write your state laws and erode local authority simply to protect its mono/duopoly revenues isn't something either Conservatives or Progressives would support in a sane world. Refreshingly, a lot of the community revolt against these laws currently occurring in places like Colorado, North Carolina and Tennessee is being championed by Republicans and Democrats alike, who collectively (though belatedly) seem to have realized that better, cheaper broadband ultimately benefits everybody.

Earlier this year, FCC boss Tom Wheeler stated he'd be using the FCC's authority to ensure "timely" broadband deployment to dismantle portions of some of these laws, though the net neutrality debate appears to have put the issue on the back burner. That's a shame, since we've long pointed out that net neutrality issues are only a symptom of the deeper issue: a lack of competition. Dismantling idiotic laws purchased by ISPs to maintain that status quo is the very first place we need to look if that problem is ever going to be seriously addressed.

from the don't-let-that-happen dept

In the past, we've noted how unfortunate it was that the Senator who fought strongest for our civil liberties in Congress, Russ Feingold, got voted out of office back in 2010 -- in favor of a "Tea Party" candidate who has consistently voted in favor of the intelligence community since replacing Feingold. Since then, plenty of attention has gone to Senator Ron Wyden for picking up where Feingold left off, but with him on issues of civil liberties as it relates to the intelligence community has always been Senator Mark Udall -- who has been perhaps even more vocal than Senator Wyden on these issues.

And, worryingly, it appears that Udall may be facing a Feingold moment, where he's facing a candidate that has positioned himself more on "Tea Party" type issues. Udall hasn't campaigned very much on his amazing support for civil liberties, since many observers don't think that's an "election issue" in Colorado. However, recently, Udall has been willing to point to his important work on the Senate Intelligence Committee as one of a very small number of Senators who actually worked hard to push back against unconstitutional surveillance, to push for transparency and accountability for the intelligence community, and who pushed, repeatedly, to defend our civil liberties. It would be a huge loss for civil liberties if Udall were to lose this election, and a clear victory for the NSA, the intelligence community and those who like to spread FUD to retain power and take away your rights.

“I do think it would be a significant loss for the movement,” said Laura Murphy, the head of the American Civil Liberties Union’s Washington office.

[...]

“Were Sen. Udall to lose, I think he would be sorely missed,” echoed Scott Roehm, a senior counsel at The Constitution Project. “He was one of the earliest voices for meaningful surveillance reform even before the Snowden leaks.”

The Denver Post recently endorsed Udall's opponent, complaining that Udall wasn't enough of a "leader" in the Senate (not an easy thing to do as a first-term Senator). And while the editorial at least does call out Udall's work on the Intelligence Committee, it suggests that his opponent, Cory Gardner, is fine there too because he voted for the USA Freedom Act in the House. Except, of course, voting for a bill is one thing. Leading the charge on these issues is another thing altogether. Besides, the version of the USA Freedom Act that was voted on wasn't a good thing. It was the bill that the White House undermined at the last minute, leading all civil liberties groups to pull their support, and most members of the House who are big on civil liberties voted against the bill due to the compromises shoved into it. Voting for it didn't show a similar viewpoint, but rather the opposite.

There are lots of other issues for voters, of course, but feel free to check out Udall's stance on things. If you're in Colorado, please consider voting for one of the very few principled voices for civil liberties in Congress.

Since KOAA's "investigation" doesn't provide much more than "this is a thing that happened" reporting and the judicious deployment of the always-reliable "torn off bits of paper" skeuomorph highlighting words like "defamation" and "Yelp" to indicate a lawsuit is being discussed, I've hunted down some of the offending reviews.

Peak Internet's lawsuit says Petrick's statements are not only defamatory, but defamatory per se -- false statements that are so obviously harmful that the ISP doesn't even need to prove it's been harmed.

Since discontinuing his service, Petrick has made defamatory statements about Peak Internet on the Internet, including, but are not limited to, Yelp, YouTube, Superpages, and Yahoo.

The defamatory statements made by Petrick about Peak Internet include, but are not limited to, false statements about the speed of services provided by Peak Internet and responses to complaints about alleged issues with the speed of services provided by Peak Internet.

★☆☆☆☆ Beware: This company advertises fast internet speeds, but in reality rarely provides those speeds. Like every ISP, the advertised speeds are up to that speed. You shouldn't expect to get the top speed all of the time, but you can expect an average speed about 70% of the advertised speed. That's how a regular ISP works. I am receiving speeds at 50% or lower of the advertised package speed.

Peak has a guaranteed minimum which is nice, but they seem to think the guaranteed minimum is the speed that you should average at. One thing to keep in mind with wireless internet is your speeds may fluctuate due to weather and interference. This is not the issue with the package I ordered, as I explain below.

I order the 20Mbps plan. I ran speed tests and monitored the line for a full week after install, and these were the results:

* Speeds to Peak Internet hosted servers: 90% to 100% of capacity. This is useful in determining that there is not an issue between the transmitter on my house and the tower. * Speeds to any other speed test server, CDN, website, regular download server: 50% or less of capacity. I tested to multiple types of servers at multiple locations across the USA. My average speed was 7Mbps. My max speed was 12Mbps. I never once went above 12.

When I contacted Peak Internet about this issue and provided them the documentation of the tests I had been running they refused to acknowledge the issue. They said I was getting above their guaranteed minimum (4Mbps) and that I should actually be happy that I was getting 12Mbps. If I wanted that, I would have paid for the 12Mbps plan.

Peak Internet has major issues with peering and their bandwidth providers. When I pay for internet access, that means the whole internet. I'm not paying for fast speed tests to internal servers. They also just don't seem to care. They didn't want to look into the speed issue. They didn't have any desire to provide good service. They just wanted to make their money and not deal with people who call them out on their false advertising.

I feel sorry for somebody less technologically savvy that is paying for their higher packages but getting slow speeds. They don't know that they're paying double or triple than they could be for the exact same speed they are getting now with the same company.

Petrick's other reviews (Yelp, Superpages, BBB, Yahoo!) are all pretty much worded identically and make the same allegations. His complaint with the Better Business Bureau contains a link to his speed tests, which show that over the period of time tested, his connection only cleared 12Mbps once, despite being sold a 20Mbps connection. At times, it even dipped below the "guaranteed minimum" speed of 4Mbps.

Peak Internet says Petrick made "false statements about the speed of services provided by Peak Internet and responses to complaints about alleged issues" but Petrick seems to have some data that clearly indicates he never approached the advertised connection speeds during the time period he performed the speed tests.

The second part of that sentence seems to claim that Petrick's lying about Peak Internet's reps telling him that he was receiving over the guaranteed minimum connection speed and should be happy occasionally hitting 12 Mbps, even if Peak's 12/1 package sold for half the price ($25) Petrick was paying.

But Peak Internet's own response to Petrick's BBB complaint says pretty much everything Petrick accused the ISP of in his reviews.

The complainant currently subscribes to our $49.95/mo package for a maximum download speed of 20Mbps, with a guaranteed minimum download of 4Mbps. As the complainant has mentioned numerous times in both his BBB complaint, and his support ticket to us, he is achieving over this guaranteed connection speed. Unfortunately, as with every ISP, we can only guarantee the connection and speed within our own network. Once the traffic leaves our network and enters the public Internet we no longer have control over it, and thus cannot guarantee the connection speeds to any third party speedtest server. We value the complainant's business and would like to apologize that he didn't receive our email reply to his tickets and hope that he understands the clarification of our policy regarding the advertised minimum connection speeds.

Notably, Peak Internet does not specify exactly what part of what Petrick said that was false, or exactly how it was false. Remember what I always say: vagueness in defamation claims is a hallmark of meritless thuggery. Here, Peak Internet has used vagueness as a strategy to (1) obscure whether it is suing based in part of protected statements of opinion, (2) hide exactly which statements it contends to be false, avoiding early proof that the challenged statements are true, and (3) increase the costs and pressures of litigation on Petrick to shut him up and deter others from criticizing Peak Internet. You can't tell from the complaint, for instance, whether Peak Internet's argument is "our speeds were never that slow that often, he's lying" (which might be a valid defamation claim) or "his arguments are unfair because these speeds are above the guaranteed minimum speed and we don't promise the top speed all the time" (which would be an invalid attack on a protected opinion).

A customer who can only approach the speeds of a connection priced at half what he's paying obviously isn't going to be happy, but rather than work towards improving connection speeds, the company apparently decided to defer to its fine print. This isn't a great way to provide customer service and suing someone over bad reviews is an even worse decision.

Saying something is defamatory is basically calling that person a liar. Can Peak Internet prove Petrick was willfully lying when he wrote these reviews? Will it deny that it told him he probably would never approach the advertised speeds it offers but apparently can't fulfill? It seems like a long shot. The fact that other customers have left reviews complaining about slow connection speeds indicates Petrick's experience wasn't an isolated instance. This looks more like a terribly misguided attempt to silence a critic with a little intimidation.

from the you-can't-win-'em-all dept

A string of Aereo legal wins has come to an end, with US District Judge Dale Kimball of Utah imposing a preliminary injunction (pdf) on Aereo's existing operations in both Utah and Colorado. The injunction covers all of the 10th circuit, so it will technically prevent any future Aereo operations in all of Wyoming, New Mexico, and Oklahoma as well. Aereo currently operates in ten markets, but in recent weeks has bumped into some unspecified capacity issues in both New York and Atlanta (I've asked, they won't get specific about what kind of capacity issues they've faced).

Kimball wasn't particularly receptive to Aereo's claims that their tiny OTA antennas -- one rented to each Aereo subscriber -- allow the live streaming TV company to bypass the "Transmit Clause" of the 1976 Copyright Act:

"Based on the plain language of the 1976 Copyright Act and the clear intent of Congress, this court concludes that Aereo is engaging in copyright infringement of Plaintiffs’ programs. Despite its attempt to design a device or process outside the scope of the 1976 Copyright Act, Aereo’s device or process transmits Plaintiffs’ copyrighted programs to the public."

Similar legal assaults by the broadcast industry had proven unsuccessful in Boston and New York. Needless to say, broadcasters like Fox were pleased by the result, calling the ruling "a significant win for both broadcasters and content owners" that will "prohibit Aereo from stealing our broadcast signal." Riding on Aereo's New York win by using the Cablevision precedent, the battle now heads to the Supreme Court for the real showdown on April 22. Should Aereo win that, broadcasters could face a number of similar services offered by cable operators eager to bypass soaring retransmission fees.

A fired executive from a national red-light camera vendor claimed in an Arizona lawsuit that the company provided lavish gifts and bribes to government officials in 13 states to secure new contracts.

The New Jersey Star-Ledger reported Saturday that the bombshell allegations made a 13-page counterclaim by Aaron Rosenberg, former nationwide lead salesman for Redflex Traffic Systems of Phoenix, claimed that the firm “bestowed gifts and bribes on … officials in dozens of municipalities within, but not limited to the following states: California, Washington, Arizona, New Mexico, Texas, Colorado, Massachusetts, North Carolina, Florida, New Jersey, Tennessee, Virginia, and Georgia.”

Rosenberg claimed Redflex bribed local officials with meals, golf outings and tickets to professional football and baseball games, calling the expenses “entertainment” or “celebratory tokens.”

“Redflex was fired in Chicago for corruption. Nobody gets fired for corruption in Chicago,” said Assemblyman Declan O’Scanlon (R-Monmouth), an outspoken critic of the cameras in New Jersey, who called for an investigation.

(Chicagoans should note that the contractor being considered for new speed cams, Xerox State and Local Solutions, is technically no better, albeit less tainted by outright corruption. Xerox's cameras in Baltimore had a 10-26% error rate when audited, meaning the contractor issued up to 70,000 erroneous tickets in 2012 alone.)

Redflex has, of course, denied this and vows to "aggressively defend" itself against these claims. But this latest claim won't do much to salvage its almost completely destroyed reputation. Redflex isn't alone in its troubles. Contractors and camera systems are facing intense backlash across the nation, especially as evidence of faulty cameras, backroom deals and general incompetence continues to surface.

The accusations against Redflex can hardly be considered a surprise, considering the symbiotic relationship between contractors and city governments that tends to form when a new source of revenue is spotted. As long as the cameras issue tickets and the tickets continue to be paid, no one involved at the city level has much reason to examine the inner workings very closely. And if they've been plied by tickets to sporting events and rounds of golf, it makes it that much easier to drown out the complaints of constituents.

from the censorship dept

Earlier this month, we wrote about Gordon Klingenschmitt, a former Navy chaplain running for office in Colorado on the "gay people are icky" ticket (paraphrased), who had been abusing YouTube's copyright takedown system to kill the account of Right Wing Watch, a group that was critical of Klingenschmitt (known as "Dr. Chaps") and was highlighting some of his nuttier comments. Earlier this week, YouTube restored Right Wing Watch's account, after realizing that he was clearly using their copyright takedown system to stifle criticism, not for any legitimate copyright purpose.

How did Dr. Chaps respond? He immediately filed yet another bogus copyright claim with YouTube, getting their account taken offline again. At this point, some of the blame has to be place on YouTube for not realizing that Chaps is filing completely bogus DMCA notices to censor RWW. Given that they had just restored the account, they must have noticed that there were bogus claims being filed on the account from Klingenschmitt. So it's bizarre that they'd immediately accept his latest takedown and kill RWW's account yet again.

Along those lines, RWW has set up a petition, asking YouTube's legal team to change its takedown policy to flag serial abusers to prevent this sort of thing. Of course, it might also be nice if YouTube went even further, and potentially looked at legal remedies. Given that YouTube has its own copyright takedown system that goes above and beyond the DMCA, it's not clear if the takedowns here were done via DMCA notices. But, if they were, then Google could take a page from Automattic and file a lawsuit against Klingenschmitt for materially misrepresenting information in a DMCA takedown notice.

from the probably-best-not-to-celebrate-your-abuse-of-the-process dept

While there are still copyright maximalists out there who insist that copyright can't be used for censorship, it looks like we've got yet another example, and it's a crazy one. Gordon Klingenschmitt, a former Navy chaplain, who is running for the Colorado legislature on what appears to be the extreme "I hate gay people" ticket, has been able to kill off the YouTube account of Right Wing Watch, a group that (as you may have guessed) highlights and mocks extreme comments from "right wing" politicians. Over the last few months, they've been posting a few of Klingenschmitt's (who goes by "Dr. Chaps") wackier statements, including video clips of him making those statements. This is pretty clear fair use, but Klingenschmitt started using YouTube's copyright claim system to take down the videos.

In part, he argues that the videos are infringing (actually, he argues "plagiarism" which is different than copyright infringing, and the videos are actually neither), but he also focuses on the YouTube comments on those videos. Klingenschmitt claimed that the YouTube comments amounted to "death threats" from RWW's followers -- though, they're pretty standard crazy YouTube comments, not serious death threats. Also, since the comments are not made by RWW, but viewers on YouTube, RWW is not liable for them. However, he kept sending takedowns, and eventually YouTube terminated RWW's account, arguing that it was their third strike.

In response to this abuse of YouTube's takedown policy, Klingenschmitt released a press release congratulating himself, saying "David takes down Goliath." Tim Murphy, from Mother Jones, asked Klingenschmitt if he felt he should be held similarly responsible for the YouTube comments on his own videos, and Klingenschmitt said that if the user is alerted to comments and don't take action, they become responsible, which is actually not what the law says.

Either way, this appears to be another case where copyright claims are being used to censor content that someone doesn't like. And, given that it's in the context of a political campaign for office, that's especially concerning. Stifling criticism of a political candidate by abusing the law should be seen as a huge problem. Hopefully YouTube acts quickly to restore RWW's account. Whether you agree with RWW or not, hopefully you can agree that (1) they should be allowed to post fair use video and criticize politicians they disagree with and (2) they should not be held accountable for comments made by YouTube viewers.

from the and-yet,-reps-complain-about-the-public's-cynicism dept

There are rules for the common people and rules for their "leaders," and only in rare cases do the same rules cover both. Chris Morran at the Consumerist points out how politicians (yet again) are being allowed to ignore the same laws that affect their constituents. Colorado legislators are immune from speeding tickets and parking tickets thanks to the special plates issued to lawmakers -- ones that aren't included in the DMV database.

According to CBS Denver, the info for these particular license plates is never entered into the DMV database, so when some state senator goes zooming by a speed camera, he or she won’t get a ticket, because the camera system looks up the license plate number through the DMV. Since no info comes up, no ticket is given.

This appears to be true for parking tickets as well. See, even though a parking enforcement officer might leave a ticket on the car, cities like Denver that rely on the DMV for addresses of vehicle owners come up empty when they try to collect on those tickets.

On the parking ticket side alone, there are $2,100 worth of unpaid tickets linked to these "invisible" plates. The Dept. of Public Works has decided it's "too costly" to pursue collection of those fines. Of course, now that this is public knowledge, a politician has "stepped up" to right the wrong.

“[I]t’s absolutely unfair,” said state representative Chris Holbert. “We should be held accountable like any other citizen. We are elected to represent the people and there’s no reason for us to be treated differently.”

After this small debacle, Governor Branstad too "stepped up" to rein in the injustice, except that his idea of "reining it in" falls far short of Colorado legislator Chris Holbert's plan. In Branstad's view, the problem isn't with the plates, per se. It's that there are too many of them.

Iowa Governor Terry Branstad is upset about the number of specialized license plates that have been given to state, local and federal agencies.

More than 3 thousand plates have been issued that exempt the vehicles from getting traffic camera tickets. Brandstad has ordered state transportation officials to cut the number of the special plates.

Over 350 agencies in Iowa have these plates at their disposal (over 3,000 issued so far), a ridiculous amount considering the plates were originally intended for undercover use by various arms of Iowa law enforcement. Branstad probably isn't looking to give up his ticket-dodging plate but presumably will be forcing several others to play by the same set of rules as the public -- that same public these public servants are supposed to be serving.

Municipal, state and federal government agencies are among the biggest offenders when it comes to illegal parking and non-payment of parking citations. A report released last week by the US House Committee on Transportation documented 4000 cases last year where employees in federal vehicles skipped out on paying parking tickets worth $700,000 in Washington, DC and New York City. The total does not include unpaid tickets in foreign countries and other cities throughout the fifty states where 642,000 automobiles registered to the US government are in use.

"Over one-half of all workers in the southernmost section of Manhattan are government employees," the report explained. "Essentially, all of lower Manhattan is a free parking lot for government vehicles."

Federal workers were not alone in ignoring parking laws. City workers in Washington and New York also disregarded citations issued by fellow employees. DC government vehicles generated 329 unpaid tickets worth $33,360 while New York city and state vehicles skipped out on paying 2562 tickets worth $490,939.

The worst offender? The FBI, which the report found to be responsible for the largest number of delinquent parking tickets by a single agency. The FBI, properly chastened, examined the cases listed and, because it's such a shit-hot investigative agency, found itself "unable to come up any suspects who may have been responsible for illegally parking FBI vehicles on 218 occasions."

To the surprise of roughly no one, those responsible for enacting and enforcing laws are seldom as interested in following them. Apparently, performing the "business of government" is such a total sacrifice that illegal parking, speeding and other traffic violations should be waved off so that our nation's do-gooders are unimpeded in their good doings.

from the seems-like-common-sense dept

The natural enemy of the family dog is the local cop. Some of the stories we hear about cops shooting dogs, man, it’s like they don’t even try to deal with the animal reasonably. They shoot first and put the leash on later. I get that some people are just irrationally afraid of dogs, but cops are armed and in stressful situations. And since “dog murder” isn’t really a thing, there’s no incentive for cops to hold their fire.

We’ve reported in the past about how jury awards are going up when cops are found to recklessly kill family pets. But money cannot replace the companionship of a best friend.

Now, one state is trying to take more decisive action by requiring cops to learn how to deal with “short, hairy children”….

The Denver Post (gavel bang: ABA Journal) reports that a bill called the “Don’t Shoot My Dog” law is making its way through the Colorado State Senate.

The bill would require police officers to undergo training on how to deal with dogs. And it has bipartisan support:

“The reason I think it is important is dogs are not just property to most people, they are their short, hairy children,” [said Jennifer Edwards of The Animal Law Center]. “They are a part of the family, and it is absolutely devastating to lose an animal and to lose an animal so wrongfully when it could be solved by better training and better understanding of dog behavior.”

The bill’s sponsors, Democrat Lucia Guzman and Republican David Balmer, point out that “landscaping companies [and] delivery companies” deal with dogs all the time, without shooting them.

Some of the stories about police brutality to dogs are disgusting:

Among those expected to testify in favor of their bill is Gary Branson of Pueblo, whose 4-year-old labrador mix was shot multiple times by a Commerce City police officer after the pet escaped a relative’s home.

In Branson’s case, the 58-year-old left Chloe with a relative while visiting his brother in California last November. The dog got out through an open garage door and was running around the neighborhood.

Commerce City police said the dog was aggressive and continued to behave that way after being restrained with an animal-control noose. Chloe was shocked with a Taser and then shot multiple times.

What kind of sick person Tasers and shoots a family lab that has already been restrained?

Dogs are not people and shouldn’t be treated as such under the law. But they’re not mere property either. We need to carve out a legal space for our furry companions that at least respects our rights to keep them alive.

from the regulation-2.0 dept

Here we go again. Yet another local transportation regulator who either doesn't understand Uber or (perhaps more likely) understands it all too well has decided to give Uber all the free Streisand Effect publicity it needs to build its reputation in the market by trying to pass legislation to shut it down. This time it's the Colorado Public Utilities Commission, which is looking to pass some new regulations that effectively make it impossible for Uber to operate its innovative car/taxi service (which is incredibly popular with users) in Denver. Of course, all this has really done is give Uber the perfect opportunity to get tons of attention for its service in Denver as it urges Uber fans to speak out against the regulatory changes.

Uber points out that the proposed changes will basically make its business model illegal in multiple ways -- saying that you can't price based on distance, effectively keeping Uber cars outside of downtown areas that taxis populate, and forbidding Uber's key relationship set up with drivers (independent partners). As Uber points out, these rules don't serve any legitimate regulatory purpose other than to prop up the taxi business model and hurt the disruptive upstart:

These rules are not designed to promote safety, nor improve quality of service. They are intended to stop innovation, protect incumbents, hurt independent drivers, and shut down Uber in Denver.

Of course, we've seen this before. In a bunch of places where Uber operates, the service faces regulatory crackdown by local regulators who seem to do a lot more to protect incumbent taxi services than they do to figure out what benefits the users the most. This gets back to that concept of corruption laundering that I've mentioned a few times. The regulations can be presented as having good intentions: they want to protect riders from getting scammed by unscrupulous drivers, and they want to make sure the market is safe and efficient. But, as with so many regulatory schemes, what can be positioned as having the best of intentions also serves a secondary purpose: to allow incumbents the ability to thrive, while blocking out competition and the impact of disruptive innovation. That seems to be the case here yet again.